Ex-NFL players cleared to sue video game maker

FEDERAL COURT

Published 4:00 am, Wednesday, April 4, 2012

In this video game image released by EA Sports, an image of NFL quarterback Brett Favre wearing a Minnesota Vikings uniform is shown from "Madden NFL 10." (AP Photo/EA Sports)

In this video game image released by EA Sports, an image of NFL quarterback Brett Favre wearing a Minnesota Vikings uniform is shown from "Madden NFL 10." (AP Photo/EA Sports)

Photo: AP

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Obtaining Take-Two would
help EA keep pace with Activision
Blizzard, the merger between Ac?
tivision and Vivendi Games. It also
would add huge moneymakers
like Grand Theft Auto.
Electronic Arts video game Madden 08 is on display next to Take-Two Interactive Software video game Grand Theft Auto at Best Buy in Mountain View, Calif., Monday, Feb. 25, 2008. Video game maker Electronic Arts Inc. on Monday urged the publisher of "Grand Theft Auto" to quickly accept its unsolicited $2 billion takeover bid, saying it's only a matter of time before it declares "game over" and pulls its premium offer. EA wants an agreement on a deal before the release of "Grand Theft Auto IV." Take-Two Interactive Software Inc. says it's willing to talk, but only after the next installment of its popular crime game goes on sale in April. (AP Photo/Paul Sakuma) less

Obtaining Take-Two would
help EA keep pace with Activision
Blizzard, the merger between Ac?
tivision and Vivendi Games. It also
would add huge moneymakers
like Grand Theft Auto.
Electronic Arts video ... more

Photo: Paul Sakuma, AP

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Photo: Courtesy Electronic Arts, NYT

Ex-NFL players cleared to sue video game maker

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A group of former National Football League players can proceed with a suit against the makers of the best-selling video game "Madden NFL", whose unnamed, on-screen combatants are allegedly modeled closely on retired pro footballers, a federal judge has ruled.

In seeking to dismiss the suit, game manufacturer Electronic Arts Inc. argued that it was entitled to use information about athletes as the raw material for an entertainment product, just as baseball "fantasy leagues" use players' actual records in imaginary games.

But U.S. District Judge Richard Seeborg of San Francisco ruled March 29 that a video game trades on players' images, not their statistics, and must respect laws that allow individuals to control the commercial use of their name and likeness.

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The ruling is "a big step - the court rejected their (the company's) principal defense," Brian Henri, a lawyer for the players, said Tuesday.

There was no comment from Electronic Arts. The company has appealed the ruling to the Ninth U.S. Circuit Court of Appeals, which is already considering its appeal of another judge's ruling allowing college football players to sue over the use of their names and images in an Electronic Arts video game.

"Madden NFL" simulates games in realistic-looking stadiums. Electronic Arts has paid for the rights to use the names and likenesses of active players and select retirees, but not for those represented in the suit.

According to the suit, although those ex-players' names and numbers are not shown on screen, the video figures precisely reflect each player's height, weight, position, experience and athletic skills.

In his ruling, Seeborg said artists have a right to use prominent people's names and images in creative works - for example, in a fictional film based on a celebrity's life. But this video game simply shows the plaintiffs "in their conventional role as football players" and is the "digital equivalent" of using their pictures to sell T-shirts, he said.

He rejected the company's argument that it had a constitutional right to report accurate information about the players, saying the video game did not describe or re-create actual contests. And unlike a baseball fantasy league, Seeborg said, these games use players' images and likenesses, which are their legal property, and not merely their statistical records.

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